Doubt Cast on Identification of Nazi Guard 'Ivan'

By DAVID JOHNSTON,

Published: July 1, 1993

WASHINGTON, June 30—
A report to a Federal appeals court today concluded that there was substantial doubt about the Government's longstanding assertion that John Demjanjuk, a retired Cleveland auto worker, was Ivan the Terrible, the sadistic gas chamber operator who drove thousands of Jews to their deaths in World War II.

Based on a 10-month inquiry, the report by Thomas A. Wiseman Jr., a Federal district judge in Nashville, found that Government prosecutors who stripped Mr. Demjanjuk of his American citizenship and obtained an order to deport him failed to pursue leads contradicting the theory that he was the murderous Ivan of the Treblinka death camp.

But the report, a legal review prepared at the request of the United States Court of Appeals for the Sixth Circuit, in Cincinnati, concluded that Federal prosecutors who worked on the case did not break the law or intentionally conceal evidence that would have cleared Mr. Demjanjuk of war crimes.

As a result, Judge Wiseman said he had determined that Justice Department prosecutors acted legally in a case that culminated with Mr. Demjanjuk's extradition to Israel, where he was tried and convicted of war crimes in 1988. Therefore, the judge recommended that the orders against Mr. Demjanjuk stand and urged the appeals court to close the case.

But it was unclear whether any action would result from Judge Wiseman's conclusions. At the least, his report further challenged the Government's insistence that its evidence proved Mr. Demjanjuk was Ivan, who beat and slashed his victims as he herded them into the gas chambers.

The appellate court had reopened the case on its own initiative last August, five years after it rejected Mr. Demjanjuk's appeal of his extradition. A panel of three appeals court judges appointed Judge Wiseman as a special master to conduct an inquiry into whether the Government engaged in misconduct. Effect in Israel

Judge Wiseman's findings are recommendations to the panel, which has scheduled a hearing in the case for Aug. 4. The appellate court can accept his findings or reach its own conclusions, but legal experts said it was doubtful that an American court could affect Mr. Demjanjuk's case in Israel.

Edward W. Nishnic, Mr. Demjanjuk's son-in-law who has led his defense team, said today that even though the report rejected assertions of Government wrongdoing, he regarded it as a victory. "For the first time in 15 years, a Federal judge is saying there's considerable doubt about Mr. Demjanjuk's being Ivan," Mr. Nishnic said.

But Jewish groups said they welcomed Judge Wiseman's unwillingness to accept Mr. Demjanjuk's arguments of Government misconduct and his recommendation to close the case.

"The most important thing is that John Demjanjuk is certainly not an innocent auto mechanic from Cleveland," said Rabbi Marvin Hier, dean of the Simon Wisenthal Center in Los Angeles, which has supported the Justice Department's Nazi-hunting efforts.

As the legal battle went on in the United States, Mr. Demjanjuk, who is 73, remained in prison in Israel under a sentence of death. At his trial evidence was also presented about his presence at other German camps in Poland during World War II.

The Israeli Supreme Court is weighing Mr. Demjanjuk's appeal of his conviction, but the Justice Ministry said today that Judge Wiseman's report was "irrelevant" to the case there. Mr. Demjanjuk's supporters have said they expect a ruling by the Israeli court soon, possibly in late July.

Mr. Demjanjuk was convicted in Israel and sentenced to be hanged for his crimes partly based on the recollections of aging survivors of Treblinka, who testified that Mr. Demjanjuk was the sword-wielding gas chamber operator who switched on the engines that pumped lethal diesel exhaust fumes into the killing chambers. In 1942 and 1943 Nazi SS officers and guards recruited among prisoners of war killed an estimated 750,000 to 900,000 men, women and children at the camp.

But after Mr. Demjanjuk's trial, his lawyers raised doubts about the survivors' testimony, using statements recently obtained from the archives of the former Soviet Union. These statements, taken from other Treblinka guards during Soviet war-crimes interrogations, suggested that Ivan might have been another man, Ivan Marchenko, who was last seen alive in 1943 and whose whereabouts are unknown.

Mr. Demjanjuk's lawyers presented the statements to the Israeli Supreme Court in an appeal. It was the first time the material had been introduced in any court. Prosecutors criticized the evidentiary value of the statements, saying that they may have been obtained through coercion of witnesses who, unlike the survivors of Treblinka, were not available for cross-examination.

In his report today, Judge Wiseman also relied on the Soviet statements in raising questions about Mr. Demjanjuk's wartime identity.

"The Soviet evidence, viewed in its entirety, cast a substantial doubt on Mr. Demjanjuk's factual guilt of the central allegation of the denaturalization complaint -- that he was Ivan the Terrible of the Treblinka gas chambers," he said. The statements of guards, the judge said, form a "harmonious chorus" that implicates Mr. Marchenko and therefore tends to clear Mr. Demjanjuk.

The judge said that even though Mr. Demjanjuk might not be Ivan there remained strong evidence that the Ukrainian-born Mr. Demjanjuk had tried to hide his other wartime activities for the Nazis when he entered the United States in the 1950's.

The judge found that prosecutors, in a series of legal actions from 1976 to 1986, "failed to challenge the evidence they possessed, and this led them to abandon leads which contradicted their interpretation of the evidence."

He added: "The individuals who composed the team which prosecuted Mr. Demjanjuk acted in good faith. They did not intend to violate the rules or their ethical obligations. Although they were blinded to what we may now perceive to be the truth, they were not willfully blind."